O’DONOGHUE V ENTERPRISE INNS PLC

[2008] EWHC B15 (Ch), Chancery Division, Leeds Registry, His Honour Judge Behrens QC, 29 September 2008

Arbitration – Serious irregularity – Failure by arbitrator to hold oral hearing – Objection to findings of fact – Whether arbitrator had acted unfairly – Whether there had been substantial injustice – Loss of right to object – Arbitration Act 1996, sections 33, 34, 68 and 73

The dispute in this case related to a rent review clause in the lease of a public house. The parties failed to agree the rent and an arbitrator was appointed. The arbitrator, after having received prolonged arguments, decided not to hold an oral hearing following a written hearing, and proceeded to an award. A challenge to the award on the ground that an oral hearing should have been held was dismissed. The arbitrator had acted fairly and impartially, and had a discretion under section 34 of the Arbitration Act 1996 not to hold an oral hearing: that discretion had been exercised following representations and reasons for the decision had been given. Accordingly there was no serious irregularity within section 68 of the 1996 Act, and even there had been there had not been substantial injustice and in any event the applicant had not raised an objection until after the award had been issued so that any irregularity had been waived under section 73 of the 1996 Act.